Steps worth taking

Sound advice from Parliament on judicial reform

India’s recent constitutional history has featured an uneasy relationship between the three branches of the state. In particular, the executive and legislature have sought often to corral the judiciary. It would be natural, therefore, for observers — including some in the higher judiciary — to look with a jaundiced eye on advice from the legislature on reforming India’s courts. It would be a mistake, however, to apply this sort of filter to the recent report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. This report, which was tabled in Parliament recently, came up with some well-argued recommendations on judicial reform. Some of these have been bouncing around in the policy world for a while, and others are relatively new — but all of them deserve careful and open-minded scrutiny.

One important suggestion is twofold: That the retirement age for judges be raised and that post-retirement public appointments for judges be “reassessed”. This is a clear response to increasing public concern that the impartiality of judges is compromised if they are also hoping for a good decade of post-retirement work in bodies funded by the public exchequer, and to which they would be appointed by the executive. There is no need to suggest that particular decisions were influenced by the possibility of post-retirement appointments to make the argument that the incentive system for judges must be restored to equilibrium; all that needs to be said is that as it stands, the executive has too much control over judges’ futures for the system to work perfectly.

Another suggestion that has been mooted for some time is that the lengthy holidays taken by Benches in the superior judiciary be cut down somewhat. The standard reply is that long closures are necessary for judges to review and write their decisions. But there must surely be ways around this that do not limit litigants’ access to the higher courts so sharply. Increasing access to higher courts is of vital importance, especially given the quality of jurisprudence on display in the lower judiciary. The suggestion that Supreme Court Benches be set up outside New Delhi should also be seen from the point of view of increasing access. The parliamentarians point out that the cost of travel to New Delhi, difficulties of arguing in non-local languages and so on can disadvantage some Indians gravely in terms of their access to justice. Setting up regional Benches of the apex court would be a major step forward for practical federalism.

One new but vitally important concern raised in the report was the question of diversity. The panel has said there is a “declining trend” in the higher judiciary when it comes to representation of marginalised communities. This is indeed worrying, given that diversity should logically be increasing with time. Clearly, some form of intervention is essential. This can come from only the Supreme Court and the collegium. The judges must work harder to identify candidates that can expand the court’s perspectives and increase its diversity, or they risk losing legitimacy in the public sphere. The judges surely do not want a lack of diversity on the court to become another weapon for the executive to use in its ongoing efforts to control the appointments process. All in all, the committee report is worthy of attention from the executive and especially the higher judiciary.